In re Rogers

• Decision Date: 24 July 1928
• Docket Number: No. 89.,89.
• Citation: 220 N.W. 808,243 Mich. 517
• Parties: In re ROGERS, State Highway Com'r.
• Court: Michigan Supreme Court

243 Mich. 517

220 N.W. 808

In re ROGERS, State Highway Com'r.

No. 89.

Supreme Court of Michigan.

July 24, 1928.

Certiorari to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Petition by Frank F. Rogers, State Highway Commissioner, for the condemnation of private property of Frederick W. Boelter and others for public highway purposes in Ecorse and Brownstown Townships, Wayne County, Mich. The report of the Commissioners, fixing compensation, was confirmed, and Boelter and other landowners bring certiorari. Award of confirmation set aside, and case remanded.

Argued before the Entire Bench, except POTTER, J.Atkinson, O'Brien & Clark, of Detroit, Woodruff & Woodruff, of Wyandotte, and Charles, W. Kurth, of Detroit, for petitioners Boelter, Schaffer, Petroskes, and Melodys.

Bernard P. Costello, of Detroit, and John J. Marx, of Wandotte, for petitioner Langlois.

Wilber M. Brucker, Atty. Gen., and Lincoln E. Bradt, Asst. Atty. Gen., for appellee.

WIEST, J.

Several landowners review, by certiorari, proceedings to condemn their lands in the townships of Ecorse and Brownstown, Wayne county, for the purpose of a public highway.

For the sake of brevity we will consider the case of Frederick W. Boelter, who owns a farm of 82 acres in the township of Ecorse, having a frontage of 160 rods on the west road and 84 rods on the Telegraph road, both being paved highways. The proposed road cuts through Mr. Boelter's farm diagonally, taking 3.938 acres, and leaving 8.44 acres on the west and the rest of the farm on the south of the highway. April 1, 1927, the state highway commissioner, by petition, asked the circuit court for Wayne county to appoint court commissioners to determine the necessity for the road and fix the compensation to be paid owners for land taken, and alleged inability to purchase from the owners by negotiations. The circuit judge, in the return to the writ, states that, on April 25, 1927, the petition was heard, all parties being present, and both sides submitted a list of names from which court commissioners might be selected, and, ‘no objection being interposed in any form or manner,’ he appointed three court commissioners. The commissioners heard the petitioner's proofs, denied Mr. Boelter's motion to dismiss the proceeding for want of proof of bona fide effort to purchase, and heard the proofs of the landowners, found the necessity, awarded Mr. Boelter $2,369, and made report. Objections to confirmation were duly filed. The objections were overruled and the report conformed.

We find it necessary to consider but three points: (1) Was there a bona fide effort made to purchase? (2) If not, was the point waived by failure to raise it at the time the commissioners were appointed? (3) Was the compensation inadequate?

The compensation awarded was evidently based upon a liberal deduction for remote, contingent, and purely speculative benefits and, while we may not substitute our judgment for that of the court commissioners, within the range of legitimate evidence, we may shear the case of speculative evidence, inducing improper deductions, and determine whether the compensation was adjusted upon an improper basis or departs from the evidence. This we will consider later.

The circuit judge held that respondents were required to object, if they cared to raise the point of no proper effort to acquire their land by purchase, at the time of hearing the petition to appoint commissioners, and, not having done so, waived the point, and besides, by joining in presenting a list from which the commissioners were to be selected and proceeding to a hearing before such commissioners, are estopped. Authority supporting such ruling exists in other states. In this state the statute (C. L. 1915, §§ 4357, 4358) provides:

‘If in the laying out, widening, changing or straightening of any road, it shall become necessary to take private property, the said board shall cause a survey of such proposed road to be made, together with an accurate description of the lands required therefor. Thereupon they shall endeavor to agree with each owner, resident of said county, for the purchase of a right of way over his land included within such description. If they are able to agree with the owner thereof, they may purchase the same and pay therefor out of the funds under their control, and such lands shall then be conveyed to the county for the use and purpose of a road. Whenever said board shall be unable to agree with any person interested in any parcel of such land, * * * the board may present to the circuit court or probate court of the county a petition, describing the proposed road and each parcel of land necessary therefor which they have been unable to acquire, giving the name of each person interested in each parcel so far as known, and praying for the appointment of three commissioners to determine the necessity of such proposed road, the necessity of taking each such parcel therefor, and to appraise the damages to be paid as compensation for such taking of each parcel for road purposes.’

This court has repeatedly held that a bona fide endeavor to acquire the land by purchase is made mandatory by statute, and therefore is jurisdictional, in the sense of a condition precedent, to right to invoke the power of eminent domain. An effort to purchase must be made and the fact must be alleged in the petition invoking the power of eminent domain and proved at some stage of the proceeding. Practice and procedure upon this subject are not mapped by statute or rule. Landowners are not required to plead, demur, or make formal answer to the petition. They may move to dismiss, and should do so, if the petition fails to aver jurisdictional facts; but, if the petition makes proper averments, then the landowners may leave petitioner to his proofs, and, if the jurisdictional fact alleged is not proved, the proceeding is not justified and is at an end. In this particular, jurisdiction of the subject-matter may not be conferred by waiver or estoppel. The averment in the petition of endeavor to purchase was sufficient prima facie to authorize appointment of court commissioners and open issues of fact, inclusive of jurisdictional prerequisites, but did not prove any alleged fact, call for...